Plaintiff Harry L. Spaulding brought this action on both contract and tort theories against defendant S. Khalid Hussain, a neurologist who had treated him for the serious injuries he suffered when he fell into a pit at a scrap metal yard owned and operated by Cumberland Recycling Corporation. The gravamen of the complaint was that Hussain improperly refused to testify on plaintiff's behalf as his treating physician at the trial of his negligence action against Cumberland, requiring him to settle his claim against Cumberland for a grossly inadequate sum. Following a trial in which plaintiff in effect "retried" his case against Cumberland as well as his action against Hussain, the jury, responding to extensive special interrogatories, returned a verdict in plaintiff's favor on both the contract and tort theories. It also, however, allocated 45% of total negligence to plaintiff. The trial judge thereafter granted plaintiff's motion for judgment n.o.v. and assessed 100% of causative negligence to defendant. Defendant appeals, claiming error in the grant of the motion for judgment n.o.v., in the denial of his motion for a new trial, and in the manner in which the trial judge calculated prejudgment interest.

In August 1981 plaintiff, then 61 years old and a self-employed scrap dealer, brought a load of light iron to the premises of Cumberland Recycling Corporation. As was his custom, he

drove his pickup truck to a metal ramp at the edge of the pit in which scrap metal of that nature was ordinarily dumped and compacted. Assisted by his cousin, he attempted to unload the truck by tossing the iron into the pit. As they were engaged in this maneuver, plaintiff slipped on grease which covered the metal ramp and fell into the pit. He sustained serious and permanent orthopedic and neurological injuries whose treatment required surgery, lengthy hospitalizations, and extensive rehabilitation. His primary physician throughout was defendant Hussain.

In due course, plaintiff filed a negligence action against Cumberland claiming that it had failed to maintain its business premises in a reasonably safe condition and that it was consequently liable to him, a business invitee, for the injuries caused by the defective condition of the property. In preparation for trial, plaintiff's then attorney, Kenneth Calloway, obtained the forensic services of a consulting engineer, whose expert opinion supported plaintiff's theories of Cumberland's liability. Calloway, regarding Hussain's prospective testimony as critical to the damages issues, met with him in May 1984 to review his various written reports, to discuss plaintiff's continuing symptoms, condition and prognosis, and to ensure his availability at trial. By this time it appeared that Cumberland was not proposing to offer any medical proofs in contravention and, hence, that Hussain was the sole anticipated medical witness. In any event, according to Calloway's testimony in this trial, Hussain unequivocally agreed at that conference that as long as he had adequate notice, he would willingly appear at trial.

Trial of the action against Cumberland was first scheduled for November 26, 1984. Calloway advised Hussain of the date, Hussain said he would be out of the country, and Calloway sought and was granted an adjournment. The trial was rescheduled for January 2, 1985, a Wednesday. Calloway testified that he telephoned Hussain's office on December 5, 1984 to ascertain his availability for trial on the January date and was assured by Hussain's secretary that although he was still out of

the country, he would return at the end of December and would be then able to testify. Calloway wrote to Hussain the same day, confirming this understanding. Relying on these representations, Calloway assumed he could proceed on January 2, 1985, and the trial in fact then commenced. Calloway spoke to Hussain on that date and agreed to accommodate the doctor's request that his testimony be delayed until the following Monday, January 7th, the doctor explaining that he had just returned from an extended vacation and would be engaged in pressing professional obligations for the balance of the week. However, according to Calloway, Hussain asked him to be sure to call his, Hussain's, office and tell his secretary to prepare plaintiff's file for him to take home and review over the weekend so he would be ready for trial on the Monday morning. In further accommodation of plaintiff's scheduling problems with Hussain, Cumberland, with the court's consent, agreed to put in its defense before Hussain testified. Thus, by the end of the week, both sides had adduced all of their proofs with the exception of Hussain's testimony.

Calloway expected Hussain in court at 9:00 a.m. on Monday morning. He testified that he tried unsuccessfully to reach him by telephone four times between 8:15 a.m. and 8:25 a.m. to confirm his arrival. Hussain did not appear, and Calloway finally reached him from the courthouse between 9:00 a.m. and 10:00 a.m. During the course of that conversation, Hussain said that he would be leaving the hospital at noon, would call Calloway at the courthouse when he left, and would arrive at 1:00 p.m. Calloway advised the trial judge of these representations and requested and was accorded the further indulgence of deferral of the trial until the afternoon. The jurors were accordingly then excused and Calloway stationed himself at the telephone to await Hussain's call. It never came. Neither did Hussain. Nor did Calloway's telephone calls to Hussain's offices and the various hospitals at which he practiced succeed in tracking him down. Calloway, it should be noted, had never subpoenaed Hussain. He assumed, in view of Hussain's original

promise to appear and repeated reassurances thereafter that a subpoena was not necessary for procuring his attendance. He nevertheless had asked Hussain if service of a subpoena would be helpful to him in explaining his court attendance to the hospitals in which he practiced. Being assured by Hussain that he did not require one for that purpose, Calloway never served one.

When it became clear to Calloway that Hussain would not appear, he began, so he testified, to weigh his options which he regarded as threefold: seeking a further continuance, moving for a mistrial, or accepting Cumberland's inadequate settlement offer of $75,000 and looking to Hussain thereafter to make plaintiff whole. He concluded that he was not in a position to request a further continuance since he could make no representation to the judge respecting Hussain's whereabouts or testimonial intentions. He also decided against moving for a mistrial reasoning that

it wasn't fair to Harry [plaintiff] who went through the trial. Wasn't fair to the witnesses. Wasn't fair to anybody. It was a big expense as well. The expense wasn't the problem. It was the rescheduling and retrying the whole case over again and I don't know that that would have been granted or not because I'm the one that caused the problem and I'm the one asking for a mistrial.

Plaintiff's complaint charged Hussain with "intentional deception," breach of his express agreement to testify, and breach of his duty to treat his patient, a duty alleged to include testifying ...

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